[Cites 1, Cited by 0]
Karnataka High Court
Shri Mallappa S/O Basavanneppa ... vs Shri Madeppa S/O Basavanneppa ... on 6 April, 2026
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RFA No. 100410 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 6TH DAY OF APRIL, 2026
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
REGULAR FIRST APPEAL NO.100410 OF 2022 (PAR/POS)
BETWEEN:
SRI. MALLAPPA S/O. BASAVANNEPPA KADAGANNAVAR @
PANTI, AGE: 65 YEARS, OCC. AGRICULTURE,
R/O. SANGOLLI, TAL.BAILHONGAL,
DIST.BELAGAVI-591115.
...APPELLANT
(BY SRI. A.B. NESARGI, ADVOCATE)
AND:
1. SRI. MADEPPA,
S/O. BASAVANNEPPA KADAGANNAVAR @ PANTI,
AGE: 55 YEARS, OCC. AGRICULTURE,
R/O. VAKKUND, TAL.BAILHONGAL,
VINAYAKA DIST.BELAGAVI-591102.
BV
2. SMT. SOMAWWA W/O. CHANNABASAPPA SANGOLLI,
Digitally signed AGE: 60 YEARS, OCC. AGRICULTURE AND HOUSEHOLD,
by VINAYAKA B V
R/O. VAKKUND, TAL.BAILHONGAL,
Date: 2026.04.07
09:58:05 +0530 DIST.BELAGAVI-591102.
3. SMT. SHANTAWWA
W/O. SHEKHAPPA KADAGANNAVAR @ PANTI,
AGE: 47 YEARS, OCC. AGRICULTURE AND HOUSEHOLD,
R/O. VAKKUND, TAL.BAILHONGAL,
DIST.BELAGAVI-591102.
4. SMT. LAXMI W/O. VEERUPAXAPPA KURGUND,
AGE: 40 YEARS, OCC. AGRICULTURE AND HOUSEHOLD,
R/O. UDIKERI, TAL.BAILHONGAL,
DIST.BELAGAVI-591104.
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RFA No. 100410 of 2022
HC-KAR
5. SRI. NAGARAJ S/O. SHEKHAPPA KADAGANNAVAR @ PANTI,
AGE: 27 YEARS, OCC. AGRICULTURE & POLICE DEPARTMENT,
R/O. UDIKERI, TAL.BAILHONGAL,
DIST.BELAGAVI-591104.
NOW AT: TOWN POLICE STATION, MADIKERI.
6. SMT. MAHADEVI W/O. SHEKHAPPA MALAGI,
AGE: 50 YEARS, OCC. AGRICULTURE AND HOUSEHOLD,
R/O. NAYANAGAR, TAL.BAILHONGAL,
DIST.BELAGAVI-591102.
7. SRI. RUDRAPPA
S/O. BASAVANNEPPA KADAGANNAVAR @ PANTI,
AGE: 47 YEARS, OCC. AGRICULTURE,
R/O. VAKKUND, TAL.BAILHONGAL,
DIST.BELAGAVI-591102.
8. SRI. MAHANTESH,
S/O. BASAVANNEPPA KADAGANNAVAR @ PANTI,
SINCE DECEASED BY LRS.
9. SMT. SHILPA W/O. MAHANTESH KADAGANNAVAR @ PANTI,
AGE: 35 YEARS, OCC. AGRICULTURE AND HOUSEHOLD,
R/O. VAKKUND, TAL. BAILHONGAL,
DIST.BELAGAVI-591102.
10. SMT. SHOBHA W/O. MAHANTESH KADAGANNAVAR @ PANTI,
AGE: 35 YEARS, OCC. AGRICULTURE AND HOUSEHOLD,
C/O. SRI. RAMAPPA BALAPPA KALLOLI,
R/O. HADIGINAL , TAL. GOKAK, DIST.BELAGAVI-591218.
...RESPONDENTS
(BY SRI. LAXMAN T. MANTAGANI, ADVOCATE FOR R1;
NOTICE ISSUED TO R2, R3, R4, R5, R6, R7, R9 AND R10-NOTICE
SERVED BUT UNREPRESENTED;
R8-DECEASED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., PRAYING THAT
THE JUDGMENT AND DECREE PASSED IN O.S.NO.8/2017 BY THE
HON'BLE SENIOR CIVIL JUDGE, BAILHONGAL DATED 17.01.2022 ,AY
KINDLY BE SET ASIDE BY ALLOWING THIS APPEAL AND ALLOW THE
SUIT FILED BY THE APPELLANT, IN THE INTEREST OF JUSTICE AND
EQUITY.
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RFA No. 100410 of 2022
HC-KAR
THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH)
Heard the counsel appearing for the appellant and also
the counsel appearing for the respondent No.1.
2. The factual matrix of the case of the plaintiff before
the trial Court while seeking the relief of partition and
separate possession seeking 1/7th share in the suit schedule
properties, is that the plaintiff is the son of Basavanneppa S/o
Shivabasappa Kadagannavar @ Panti, who died on
16.11.2016. It is the case of the plaintiff that his father
Basavanneppa had two wives and first wife Smt. Irawwa is his
mother and his father also married Smt.Sangawwa and
through her, there are six children i.e. four sons and two
daughters. Among them, one son Sri. Shekhappa also died 6
years back. The other sons of Sangawwa are defendant Nos.1,
7 and 8 and defendant Nos.3 to 5 are the legal heirs of
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deceased Shekhappa. Defendant Nos.2 and 6 are the
daughters of Sangawwa. It is the contention of the
appellant/plaintiff that during the lifetime of father of the
plaintiff, his father was managing the suit schedule properties
as a Manager. The suit schedule properties are the ancestral
joint family properties of the plaintiff and defendants. The suit
land had fallen to the share of father of the plaintiff in the
registered Partition Deed dated 12.04.1977 and the
Rectification Deed dated 16.11.1977. As per the partition, the
revenue records came to be mutated in the name of father of
the plaintiff on 20.02.1978. The land situated at Vakkund
village has fallen to the share of father of the plaintiff under
the registered partition and rectification deed, which have
been referred above. It is contended that non-agricultural
properties also fell to the share of the father of the plaintiff in
a compromise petition. The movable properties were acquired
out of joint family funds and since the date of partition, the
father of the plaintiff and all his children enjoyed the
properties jointly. After the death of father, the plaintiff and
defendants being the co-parceners are enjoying the suit
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schedule properties. It is contended that the mother of the
plaintiff also passed away during childhood of the plaintiff and
hence he was taken to Sangolli Village to the house of
maternal grand parents of the plaintiff. After attaining the
majority, the plaintiff decided to settle in Sangolli village and
he is having his own source of income. The plaintiff was
looking after the family and never demanded a property,
share or income from the joint family lands. After the death of
the father, when the plaintiff requested a living members
certificate of the deceased father to enable to enter the name
of the parties in the revenue records, it was learnt that
defendant Nos.1, 7 and 8 have already got entered their
names in the records of the suit properties and most of these
entries are behind the back of the plaintiff, without notice to
him and therefore, it is not binding on the plaintiff. It is also
contented that the defendant Nos.1, 7 and 8 claimed that their
father during his lifetime got their names entered in the
records. The plaintiff called the elders of the village and then it
was agreed that Sl.No.3 house shall be allotted to the plaintiff.
But thereafter when the plaintiff demanded a share, it has
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been refused. Therefore, without any alternative, the plaintiff
was constrained to file the present suit for partition and
separate possession.
3. In pursuance of the suit summons, defendant
Nos.1 to 3, 5, 7 and 8 appeared through their counsel and
contested the case. Defendant Nos.4 and 6 remained absent
and not contested. Defendant No.8 also passed away and his
LRs were brought on record. Defendant No.1 has filed a
written statement denying the plaint averments and according
to him, the suit is falsely filed and the description of the suit
properties and boundaries are not proper. It is admitted that
the plaintiff is also son of Basavanneppa, who died on
16.11.2016. The relationship of the plaintiff with
Basavanneppa that his father Basavanneppa had two wives
also admitted and the same is not in dispute and also
contracting the second marriage is not in dispute. But denied
the averment that Basavanneppa was the manager of the joint
family and contended that there was no any existence of joint
family and also joint possession is denied. It is contented that
during the childhood, the plaintiff went to the house of
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maternal grand parents at Sangolli and he never returned to
Vakkunda village and after attaining the majority, he had
visited many times to Vakkunda and demanded his share.
Therefore, Basavanneppa during his lifetime, in the year 1987
itself, effected a partition and allotted share to the plaintiff in
Block No.720 of Hosur Village measuring 5 acres 5 guntas and
the possession was also handed over. On the basis of the
consent given by Basvanneppa and others, MR No.10141 was
certified and the plaintiff came to be in possession of the said
property. Hence, the plaintiff is not having any share in the
suit schedule property. The plaintiff is fully aware of this fact
and the present suit is filed only on the imaginary ground. It is
also contended that the very plaintiff had sold the property on
12.05.1987 in favour of Ishwar and Madivalappa and out of
the said amount, he had purchased the property at Sangolli
Village, therefore, the plaintiff has no right or share in the suit
schedule properties. Hence, prayed the Court to dismiss the
suit. Defendant Nos.5 and 7 also adopted the written
statement filed by defendant No.1. The trial Court based on
the pleadings of the parties, framed the following issues:
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i) Whether the defendant No.1 proves that
his father deceased Basavanneppa has
allotted the property bearing Block No.720
measuring 5 acres 5 guntas situated at
Hosur village of Saundatti in favour of the
plaintiff in lieu of his share in the suit
properties?
ii) Whether the plaintiff is entitled for the
relief claimed in the suit?
iii) What order or decree?
4. In order to prove the case, the plaintiff examined
himself as PW1 and relied upon Exs.P1 to P12. Per contra, the
defendants have examined the witnesses as DW1 to DW3 and
relied upon Exs.D1 to D6. The trial Court having considered
the material available on record comes to the conclusion that
the plaintiff was allotted a property bearing Block No.720
measuring 5 acres and 5 guntas at Hosur Village of Saundatti
Taluk in favour of the plaintiff in lieu of his share and also
taken note of document at Exs.D1 and D2 and comes to the
conclusion that already share was given to the plaintiff and
there was no any existence of joint family, particularly in
paragraph Nos.48 and 49 comes to the conclusion that the
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share, which was allotted in favour of the plaintiff, was sold by
the plaintiff himself in the year 1987. When such being the
case, the question of granting the share does not arise and
dismissed the suit.
5. Being aggrieved by the judgment and decree of
dismissal of the suit, the present appeal is filed before this
Court.
6. The main contention of the counsel appearing for
the appellant is that the trial Court committed an error in not
considering both oral and documentary evidence in a proper
perspective. The counsel would vehemently contend that the
trial Court ought to have seen that when the burden was not
casted on the appellant to prove his case, the suit ought to
have been decreed, but erroneously dismissed the suit. The
counsel would vehemently contend that it is not in dispute
that the property was allotted in favour of the father of the
plaintiff in terms of the partition on 12.04.1977, but the
contention of the defendants that share was given by the
father during his lifetime and document Exs.D2 and D1 relied
upon by the defendants and the same is the only report and
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no any document for having given the share in favour of the
plaintiff/appellant. The counsel also vehemently contends that
the trial Court should have seen that in the year 1987, the
appellant's sister's marriage was made and money was
required to perform her marriage and therefore, the father of
the appellant created Vardi and submitted the same to the
revenue authority stating that he has given the share to the
appellant, however, no such property was given to him. The
counsel also vehemently contends that the father himself had
sold the property and this appellant is not signatory to the
sale deed and when such specific pleading was made before
the trial Court and when the appellant did not agree, the very
question of dismissing the suit does not arise, since there is no
any dispute with regard to the relationship between the
parties and also the nature of the properties and the trial
Court erroneously comes to conclusion that already share was
given to the plaintiff and in turn, he had sold the property.
Hence, it requires interference of this Court.
7. Per contra, the counsel appearing for the
respondent No.1 would vehemently contend that there is no
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dispute with regard to the relationship between the parties
and also the fact that the father had two wives is not in
dispute and also the respondents are the legal heirs of the
deceased Basavanneppa not in dispute. The counsel would
vehemently contend that the property was sold in the year
1987 itself and also the documents at Exs.D1 and D2 clearly
disclose that there was a Vardi and mutation also effected in
the year 1987 and the same was accepted and father had not
sold the property, but the very appellant/plaintiff himself had
sold the property. But when the appellant/plaintiff denies the
signature, he ought to have sent the disputed document to the
handwriting expert and apart from that, even property was
parted with possession in the year 1987 itself and this suit
was filed in the year 2017 and as on the date of filing of the
suit, no such joint family was in existence. Hence, the trial
Court having considered both oral and documentary evidence,
rightly comes to the conclusion that the plaintiff is not entitled
for the relief of partition and possession.
8. Having heard the counsel appearing for the
appellant and also the counsel appearing for the respondent
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No.1 and also having considered both oral and documentary
evidence, the points that would arise for consideration of this
Court are:
1) Whether the trial Court committed an
error in dismissing the suit in coming to
the conclusion that already share was
given to the appellant and he in turn
had sold the property and no such joint
family is in existence and whether such
finding requires interference of this
Court?
2) What order?
9. Having heard the learned counsel appearing for the
appellant and the counsel for respondent No.1, the counsel for
the appellant brought to the notice of the admission on the
part of DW2 and DW3. The counsel mainly relies upon the
evidence of DW2 that in the cross examination, he admits that
he was not a party to the partition and he was not having any
information and he had mentioned the same based on the
information given by defendant No.1 that there was Watni.
The counsel also brought to notice of the admission on the
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part of DW3 and his admission is very clear that the said
Watni is a written document and the same would have been
there with Basavanneppa and also now he cannot say with
whom the same is in possession. The counsel also makes a
submission that the other persons were also there at the time
of written partition, but others have not been examined. The
counsel referring these two admissions would contend that the
trial Court ought not to have dismissed.
10. It is not in dispute that the suit property belongs to
the family and also it is not in dispute that Basavanneppa had
married twice i.e. the mother of the plaintiff was the first wife
and also the respondents and her children are born to the very
Basavanneppa through second wife. No dispute with regard to
the relationship between the parties. But only the contention
of the appellant is that there was no any partition and no such
share was given to him. But the fact is that the documents
Exs.D1 and D2 came into existence long back in the year 1987
itself. It is also important to note that the appellant though
contends that he did not execute any sale deed, but the sale
was made by the father himself immediately after the revenue
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records are changed in the name of the appellant. But the fact
is that when the sale was made long back and parted with the
possession in the year 1987, the present suit was also filed in
the year 2017 after lapse of almost 30 years that too after the
death of the father and not contended during the life time of
father that he has sold the same. It is also important to note
that when the appellant disputes the very execution of sale
deed and also in the plaint, nothing is stated with regard to
the sale made by him and the same was not within the
knowledge of the plaintiff. When the appellant disputes the
very sale deed, he ought to have filed an application before
the trial Court that he has not executed the document and
would have sent the said disputed document to the
handwriting expert to verify its genuineness. But only makes
submission that he comes to know about the sale recently
subsequent to the death of his father. But the fact is that the
property was sold in favour of the purchaser in the year 1987
and the possession was parted with.
11. The counsel appearing for the appellant brought to
the notice of this Court the admission on the part of PW1,
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wherein he categorically admits that though he is residing at
Sangolli Village, but he voluntarily says that he was visiting
even Hosur and Vakkunda Villages. PW1 also categorically
admits that the family is having the properties at Vakkunda,
Anigola and Hosur Village of Saundatti Taluk, but he made
only the properties of Anigola and Vakkunda villages in the
said suit. But the properties, which were in Hosur Village,
were not made as properties to the suit for partition and there
was no any difficulty to include those properties. Having taken
note of these admissions also, it is very clear that in a suit for
partition, there cannot be a partial partition. Law is also
settled that all the properties should be included in a suit for
partition and the very admission takes away the case of the
appellant for partition, when the other properties are left out.
Apart from that, when the sale was made in the year 1987
and also parted with possession, he is having the knowledge
about the properties are in the possession of purchaser and
though he stated that he is a resident of Sangolli and the
same is not in his knowledge but no such material is produced
that the property is still in possession of the family. When the
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mother was passed away, the plaintiff was aged about 1 or 2
years, but subsequently attaining the age of majority, that
partition was effected and share was given. The trial Court
has also taken note of Ex.D1 and D2 with regard to the
transfer of property and subsequent to the transfer of the
property also, the same was sold i.e. to the extent of 5 acres
in Sy.No.720. When such sale deed was executed by the
plaintiff and though he contended that he did not execute the
sale deed, he ought to have challenged the same and after 30
years of the sale made in favour of the purchaser, the present
suit is filed, that too making only the other family members,
who were born to second wife of his father as parties and even
not arrayed the purchaser of the property and without making
the purchaser as party to the suit, the suit for partition when
the possession was parted with cannot be granted. When such
being the case, only relief is sought for partition and separate
possession, even not contended in the suit that the very sale
deed is not binding on him and also to declare that the sale
deed in favour of the purchaser is null and void, as he was not
a party to the said sale deed and no such effort was made
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before the trial Court to question the said sale deed. When all
such materials were found before this Court, it is not a case
for reversing the finding and the trial Court has taken note of
all these both oral and documentary evidence, particularly
admission on the part of PW1 and also the evidence of DW1 to
DW3. Hence, we do not find any ground to come to another
conclusion that the trial Court committed an error in
dismissing the suit and hence, we answered the point No.1 as
"negative".
12. In view of the above discussions, we pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
Sd/-
(B. MURALIDHARA PAI)
JUDGE
JTR
CT:PA
LIST NO.: 1 SL NO.: 16
